IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RADI HAZAHZA, #A95-219-510, et al.,
Petitioners,
v.
MICHAEL CHERTOFF, et al.,
Respondents.
3:07-CV-0327-D
ECF
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court filed
on February 21, 2007, this case has been referred to the United States Magistrate Judge. The
findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for habeas corpus relief filed by five detainees of the
Bureau of Immigration and Customs Enforcement (ICE), challenging their continued detention
pending removal under 28 U.S.C. § 2241, et seq.
Parties: Petitioners are presently confined at the Rolling Plains Detention Center in
Haskell, Texas.
Respondents are Michael Chertoff, Secretary Department of Homeland Security; Alberto Gonzales, Attorney General of the United States; ICE; Nuria Prendes, Director Office of Detention and Removal Operations; John P. Torres, Director, Office of Detention and Removal; and Warden Watson, Rolling Plains Detention Facility. The Court issued process in this case.
Statement of Case: Petitioners, a father and four of his five children, are Stateless
individuals either born within the Palestinian Territories or of Palestinian ethnicity born in
Jordan. (Petition (Pet.) at 6). They entered the United States as non-immigrants on B2 visas for
a period of six months on Jordanian passports. (Id.). Prior to the expiration of their visas,
Petitioners applied for asylum, withholding of removal under the Immigration and Nationality
Act (“INA”), and relief under Article III of the Convention Against Torture. (Id.). On August
15, 2002, an immigration judge denied Petitioners’ application, found them to be citizens of
Jordan, and ordered them removed to either Jordan or the Occupied Territories. (Id. at 7).
Petitioners filed a motion for reconsideration, which the immigration judge returned because
jurisdiction lay with the Board of Immigration Appeals (BIA). (Id.). Petitioners immediately
filed an appeal to the BIA, which in turn rejected it as being untimely on March 1, 2004.
(Respondents’ Exh. 2). On April 18, 2005, the Fifth Circuit dismissed their petition for review.
(Pet. at 7). Subsequently, on November 2, 2006, “armed and armored officials from . . . [ICE]
conducted a middle of the night ‘raid’ of Petitioners’ home, and detained all Petitioners,
including” Petitioner Radi’s wife and minor son. (Pet. at 9).
In this habeas action, Petitioners challenge their continued detention pending removal and the conditions of their detention.2
In response to the Court’s order to show cause, Respondents filed a response to which
Petitioners filed a reply. The Court then heard oral arguments on March 29, 2007. On the same day, Respondents filed their Post-Hearing Submission.
Findings and Conclusions: As an initial matter, the Court pauses to address its jurisdiction to entertain the petition. The Real ID Act stripped district courts of jurisdiction over 28 U.S.C. § 2241 petitions attacking removal orders.3 See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735-36 (5th Cir. 2005), cert. denied, 126 S.Ct. 1055 (2006). Nonetheless, the Real ID Act left intact a district court’s ability to adjudicate an alien’s claim regarding the constitutionality of his continued detention. See, e.g., Gul v. Rozos, 163 Fed.Appx. 317, 319 (5th Cir. 2006). Because Petitioners challenge their continued detention, rather than the validity of their removal order, the Court is fully empowered to consider their
claim. See id.
The detention, release, and removal of aliens subject to a final order of removal is governed by § 241 of the INA, 8 U.S.C. § 1231. Section 1231(a)(1)(A) provides that, after entry of an order of removal, “the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” See also 8 C.F.R. § 241.3.4 During the 90-day removal period, the alien must be detained. 8 U.S.C. § 1231(a)(2). After the ninety-day period, if the alien does not leave or he has not been removed, he must be released under the supervision of the Attorney General. 8 U.S.C. § 1231(a)(3).
Under limited circumstances, certain aliens may be detained beyond the removal period under 8 U.S.C. § 1231(a)(6), which provides that the Attorney General may detain beyond the 90-day removal period aliens who are inadmissible, aliens who have committed aggravated felonies, aliens who are otherwise dangerous, and aliens who are a flight risk.5
In this action, Respondents rely on § 1231(a)(6) as the basis for Petitioners’ continued
detention, contending they have been “determined by the Attorney General to be . . . unlikely to
comply with the order of removal,” in other words that they are a flight risk.
1. Flight Risk under Section 8 U.S.C. § 1231(a)(6)
The Court is troubled and deeply concerned by Respondents’ unsupported and conclusory assertion that Petitioners are a flight risk because Petitioner Radi failed to appear for an unspecified appointment to “[d]iscuss [his] case” with ICE on July 1, 2005. (Respondents’ Exh. 3). According to Respondents, Form G-56, which advised Petitioner Radi of the appointment, was mailed to Petitioners’ home address and to their former attorney. Respondents have no proof to substantiate either the mailing or receipt of Form G-56, and Petitioners dispute ever receiving the same.6
Nevertheless Respondents assert that 8 U.S.C. § 1252(a)(2)(B)(ii) strips federal district courts of jurisdiction to review discretionary immigration decisions of the Attorney General where such a discretion is specified in a statute. (Respondents’ Post-Hearing Submission at 1-2).
Section 1252, entitled “Judicial Review of Orders of Removal” reads in subsection (a)(2) as follows:
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the
judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review–(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B)(ii).7
Respondents have cited no cases, nor has this Court found any, addressing whether the Attorney General’s determination of flight risk under § 1231(a)(6) falls within the jurisdiction stripping provision of § 1252(a)(2)(B)(ii). The Fifth Circuit has narrowly interpreted §1252(a)(2)(B)(ii) to strip courts “‘only of jurisdiction to review’ the discretionary authority that
is ‘specified in the statute.’” Ahmed v. Gonzales, 447 F.3d 433, 436 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)). It has reiterated “that the language of § 1252(a)(2)(B)(ii) is thoroughly ‘pellucid on this score; it does not allude generally to ‘discretionary authority’ or to discretionary authority exercised under this statute,’ but specifically to ‘authority for which is specified under this subchapter to be in the discretion of the Attorney General.’” Id; see also Manzano-Garcia v. Gonzales, 413 F.3d 462, 467 (5th Cir. 2005) (per curiam).
Section 1231(a)(6) purportedly grants discretion to the Attorney General to determine whether aliens ordered removed, such as the Petitioners in this case, are a flight risk. It provides that “[a]n alien ordered removed . . . who has been determined by the Attorney General to be . . . unlikely to comply with the order of removal may be detained beyond the removal period . . . .”
8 U.S.C. § 1231(a)(6) (emphasis added). Since the above statute appears to grant discretion to the Attorney General to determine flight risk, this Court has no choice but to conclude that the jurisdiction stripping provision of § 1252(a)(2)(B)(ii) applies, thus barring all judicial review of the Attorney General’s decision that Petitioners are a flight risk.
2. Presumptive-Six-Month Detention Under § 1231(a)(6)
Next Petitioners challenge the extent of the Attorney General’s authority to detain them
under § 1231(a)(6). Since that authority is not a matter of discretion, unlike the flight-risk
determination previously addressed, habeas jurisdiction remains available. Zadvydas v. Davis,
533 U.S. 678, 687-88 (2001).
Relying on Zadvydas, Respondents contend that Petitioners’ detention under § 1231(a)(6) is presumptively reasonable for six months, or until May 2, 2007. Thus, they contend the petition is premature and should be dismissed. Petitioners argue that, since the 90-day removal period expired long before their apprehension, it should not be considered to be part of the sixmonth presumptive period.
In Zadvydas, the Supreme Court stated that it recognized a six-month period “for the sake of uniform administration in the federal courts.” 533 U.S. at 700-701. Although not expressly stated, the Supreme Court viewed the six-month period to include the 90-day removal period plus 90 days thereafter. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 and n. 3 (11th Cir. 2002) (collecting cases at note 3).
In this case, the parties agree that Petitioners’ removal order became administratively final on March 1, 2004, when the BIA dismissed their appeal. Thus, it is undisputed that the initial 90-day removal period elapsed long before they were detained on November 2, 2006.
Petitioners rely on Ulysse v. Dept’ of Homeland Security, 291 F.Supp.2d 1318 (M.D. Fla. 2003), which rejected ICE’s assertion that the initial 90-day removal period under § 1231(a)(1) begins when a petitioner is taken into custody. This decision, however, is limited to detention during the initial 90-day- removal period under § 1231(a)(1), which is not at issue in this case.
In fact, the Ulysse court specifically noted that ICE did not suggest that the petitioner had committed any crimes, was dangerous, or posed a flight risk to justify detention under § 1231(a)(6). Id. at 1325 and n. 12.
Respondents rely on Vulaj v. Baker, 2006 WL 3253256 (E.D. Mich. Nov. 8, 2006), to argue that the six-month period of reasonable detention cannot be triggered until a petitioner is actually detained under § 1231(a)(6). In Baker, the order of removal became administratively final on May 17, 2002, when the BIA affirmed the immigration judge’s order of removal and
granted petitioner thirty days to voluntarily depart. The petitioner did not appeal and did not depart voluntarily. On September 25, 2006, the petitioner was arrested. The court held that “[u]nder § 1231(a)(6) his detention [was] mandatory for 90 days, and it [was] presumptively reasonable for up to six months under Zadvydas.” The court further held that “because petitioner ha[d] only been in custody since September 25, 2006, his petition for writ of habeas corpus [was] premature.”8
This Court finds the Baker decision persuasive, insofar as it is bound by the Attorney General’s determination that Petitioners are a flight risk. The Court, thus, concludes that the presumptive-six-month period under Zadvydas begins when a petitioner is first taken into custody under § 1231(a)(6), regardless of when the initial 90-day removal period elapsed.9
Presently Petitioners have been in custody for five months. The six-month presumptive period will elapse in less than thirty days, on May 2, 2007. Relying on Akinwale v. Ashcroft, 287 F.3d 1050, 1052 and n. 3, this Court has dismissed a habeas petition as premature if the petitioner could not show that he had been in post-order removal detention for at least six months from the date his removal order became final. See Diallo v. Gonzales, et al., 2007 WL 942094,
No. 3:06cv2155-N (N.D. Tex., Dallas Div. Mar. 28, 2007) (accepting findings and conclusions of magistrate judge) (dismissing claim under § 1231(a)(6) without prejudice as premature because filed before expiration of the six-month presumptive period); Nagib v. Gonzales, 2006 WL 1499682, No. 3:06cv0294-G (N.D. Tex., Dallas Div. May 31, 2006) (same); Kudryashov v. Gonzales, No. 3:05cv0775-H (N.D. Tex., Dallas Div., Sep. 27, 2005) (same); Apau v. Ashcroft, 2003 WL 21801154, No. 3:02cv2652-D (N.D. Tex., Dallas Div.), findings, conclusions and
recommendation accepted (Aug. 8, 2003) (same).
In light of the unusual circumstances of this case, and the fact that the initial 90-day removal order expired long before Petitioners’ apprehension, the Court recommends that the petition be held in abeyance until May 2, 2007, in lieu of it being dismissed as premature.
3. Detention Beyond Six-Month Period under § 1231(a)(6)
Zadvydas provides that if the alien has not been removed within six months and removal is no longer reasonably foreseeable, continued detention under § 1231(a)(6) is not authorized. Zadvydas, 533 U.S. 678, 699. The alien may petition the court for release if he can show that there is no significant likelihood of his removal in the foreseeable future. Id at 701.
Respondents are then required to rebut the showing with evidence. Id.
In its February 2, 2007 Decision to Continue Detention, ICE informed Petitioners that a “request for a travel document was forwarded to the Embassy of Israel.” (Petition at Exh. 17). Petitioners argue that Respondents cannot obtain travel documents from Israel – a country of which they are not citizens nor to which they have been ordered removed. (Petitioners’ Reply at 7). In support, they cite Yassir v. Ashcroft, 111 Fed.Appx. 75, *2 (3d Cir. 2004) (remanding case
to district court to determine whether petitioner, a stateless Palestianian who had been detained for nearly four years, should be released under supervision, and noting that under the Oslo Accord between Palestinians and Israelis, no travel documents can be issued for any person who does not have official Israeli or Palestinian identification), and Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 425-27 (M.D. Pa. 2004) (holding that continued detention of stateless Palestinian for a period approaching two years violated the INA despite new procedures regarding Palestinian repatriation agreed upon in early March 2004 between U.S. and Israel officials).
At oral argument, Respondents were unable to provide an update with respect to the steps being taken to secure travel documents from Israel. They reiterated, however, that Petitioners have not met their initial burden of providing good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. This Court disagrees. Petitioners
have requested travel documents from numerous countries in an effort to expedite their removal. While Respondents argue that they need to do more, they fail to specify what if anything else they can or should to do at this point to facilitate the issuance of travel documents from Israel or any other country. Accordingly, the Court concludes that Petitioners have met their initial burden, and that Respondents should be required to rebut Petitioners’ showing that their removal is unlikely in the reasonable foreseeable future.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the habeas corpus pet
ition be held in ABEYANCE until May 2, 2007, at which time Respondents should be REQUIRED to rebut Petitioners’ showing that their removal is unlikely in the reasonable forseeable future.
A copy of this recommendation shall be served electronically on counsel for Petitioners and counsel for Respondents.
Signed April 3, 2007.
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
1 Nazmeih Juma, wife of Petitioner Radi Hazahza (Petitioner Radi) and mother of the remaining Petitioners, was released by ICE on February 6, 2007, along with her minor son, Mohammed Hazahza.
2 The conditions of Petitioners’ detention at the Rolling Plains Detention Center are more appropriately reviewed in a civil rights action. Therefore, the District Court should decline to exercise jurisdiction over that claim in this action.
3 The REAL ID Act is part of the much broader Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005).
4 The removal period begins on the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order; (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a) (1)(B)(i)-(iii).
8 C.F.R. § 241.1 provides that a removal order becomes final upon the occurrence of one
of the following circumstances set out in 8 C.F.R. 1241.1:
(a) Upon dismissal of an appeal by the [BIA]; (b) Upon waiver of appeal by the [alien];
(c) Upon expiration of the time allotted for an appeal if the [alien] does not file an appeal within that time; (d) If certified to the [BIA], upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien’s
absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period except where the [alien] has filed a timely
appeal with the Board. In such a case, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of any voluntary departure period granted or reinstated by the Board or the Attorney General.
5 Section 1231(a)(6) reads as follows:
An alien ordered removed who is inadmissible under section 1182 of this title,
removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community
or unlikely to comply with the order of removal may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
6 At oral argument Petitioners’ counsel informed the Court that ICE uses Form I-166 to notify aliens that arrangements have been made for their removal, and that they should report to the designated appointment with their luggage ready for removal. Unlike Form G-56, Form I-166 is mailed certified mail return receipt requested.
Respondents’ counsel did not rebut the above assertion, nor could he explain why Form G-56 was addressed only to Petitioner Radi, although all Petitioners were deemed a flight risk by virtue of their failure to appear at the July 1, 2005 appointment.
7 “[T]his subchapter” refers to subchapter II of Chapter 12 of Title 8, which covers sections 1151 through 1378. Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006) (citing Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004); Shah v. Chertoff, 2006 WL 2859375, *3 (N.D.Tex. 2006).
8 In their response, Respondents also rely on Cuevas-Rodriguez v. Chertoff, 2006 WL 1421032 (E.D. Mich. May 23, 2006). That case, however, is distinguishable because the alien was confined on the basis of a criminal conviction until April 24, 2006. Hence the removal period under § 1231(a)(1) did not begin until the date of his release from detention. See 8 U.S.C. § 1231(a)(1)(B)(iii).
9 Apart from Baker, the Court has found no authority interpreting whether the presumptive period of detention under § 1231(a)(6) should always be six months, or whether it should be reduced to 90 days in cases, such as this, where the 90-day removal period expired long before Petitioners’ detention.
Texas Civil Rights Review 